Record producer Brian Burton knew he'd done something technically illegal when he electronically blended tracks from the Beatles' "White Album" and vocals from Jay-Z's "The Black Album" into a CD called "The Grey Album."
But he was so excited by the mix of Fab Four riffs and Jay-Z raps that he badly wanted people to hear it. "When I was finished, it was the biggest sense of accomplishment I've had over anything," he said. So in January, the Los Angeles-based Burton, who records as DJ Danger Mouse, made a couple of thousand copies of the disc and started mailing them out.
His wish to be heard has come true many times over, although not in the way he expected. On Feb. 10 the Beatles' record company, EMI Music, stopped Burton from distributing "The Grey Album." That action triggered an online revolt that led tens of thousands of people to download digital copies of the CD, generating enough buzz to draw reviews from such mainstream outlets as CNN.
EMI's move against Danger Mouse was a spectacular backfire in the war over what's fair when the muse runs afoul of copyright law in the Digital Age. Technology is making it easier than ever to sample and rework recordings, and to the chagrin of entertainment companies and some artists who hold copyrights, the public is showing little sympathy for their efforts to control original works.
Fred E. Goldring, a Beverly Hills-based music-industry lawyer, likened EMI's response to "The Grey Album" to the major labels' earlier mishandling of the Napster file-sharing service. "By creating a controversy and trying to shut it down, they actually attracted more interest in it," Goldring says. "They created their own hell." He adds, "It became probably the most widely downloaded, underground indie record, without radio or TV coverage, ever. I think it's a watershed event."
That's the dilemma faced by entertainment companies and other copyright holders in a sampling, file-sharing world. The law may be black and white, but among artists and audiences, the creative landscape has been remixed in shades of gray.
A landmark skirmish
The main force behind the online release of Burton's album was a loosely organized confederation of websites and online activists who believe copyright holders in general, and the major record labels in particular, have gone too far in trying to enforce their rights.
To them, "The Grey Album" epitomized how new digital tools allow artists to build on earlier works in unexpected ways, enriching society by turning old creations into new ones -- this time by using the originals as raw material, not just inspiration.
It's not in the public interest to hold back that kind of creativity, argued the free-"The Grey Album" forces. So despite threats from EMI's lawyers, they recruited more than 150 websites to offer downloadable versions of the work on Feb. 24 as part of a protest called Grey Tuesday.
It was a landmark skirmish in a battle that dates to the mid-'80s, when digital recorders, or "samplers," found their way into studios. Soon hip-hop artists were routinely borrowing snippets of sounds from LPs without seeking permission from the artists who recorded them or from their labels.
Those freewheeling days didn't last long. Objections from R&B giant James Brown, among others, forced some samplers to pay for the material they used. Then, in 1991, a federal judge in New York staggered the sampling world by granting British songwriter Raymond "Gilbert" O'Sullivan's request for an injunction against rapper Biz Markie, who had built a song around samples from O'Sullivan's biggest U.S. hit, "Alone Again (Naturally)."
Not only did U.S. District Judge Kevin Thomas Duffy order the rapper's label to reclaim and destroy every unsold copy of the offending record, but he also referred the case to the U.S. attorney's office for possible prosecution. Biz Markie wasn't hauled back into court, but Duffy had sent a clear -- and chilling -- message to everyone in the field.
Today, most copyright experts say that the rule on sampling is pretty clear. With limited exceptions, artists can't use a recognizable sample from someone else's recording unless the copyright holder grants permission. The copyright holder is in the driver's seat, able to set the price for a sample (ranging from a few hundred dollars to a share of the revenue from the song) or to withhold permission entirely.
The Beatles, for one, have never given their approval to any sampling requests. Jay-Z, on the other hand, doesn't seem to mind. He released a vocals-only version of "The Black Album," which was widely viewed as an open invitation to people like Burton to use his work. (The Beatles did not respond to requests for comment on "The Grey Album." Jay-Z was not available but said through a representative, "I applaud creativity in any form.")